Jim v. CIT Financial Services Corp.

• Citation: 1974 NMCA 115,86 N.M. 784,527 P.2d 1222
• Decision Date: 02 October 1974
• Docket Number: No. 1138,1138
• Parties: Allen JIM, Plaintiff-Appellant, v. CIT FINANCIAL SERVICES CORPORATION, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 1222

527 P.2d 1222

86 N.M. 784

Allen JIM, Plaintiff-Appellant, v. CIT FINANCIAL SERVICES CORPORATION, Defendant-Appellee.

No. 1138.

Court of Appeals of New Mexico.

Oct. 2, 1974.

Certiorari Granted Nov. 5, 1974.

Richard W. Hughes, Shiprock, for plaintiff-appellant

R. Thomas Dailey, Tansey, Rosebrough, Roberts & Gerding, P.C., Farmington, for defendant-appellee.

OPINION

HENDLEY, Judge.

Defendant's motion to dismiss was granted for failure to state a claim upon which relief can be granted and plaintiff appeals. In so ruling on defendant's motion the trial court accepted all factual matters of the complaint as true.

The complaint is as follows: Plaintiff is an enrolled member of the Navajo Nation residing on the Navajo Reservation in San Juan County, New Mexico. Plaintiff purchased a pickup truck in Farmington, New Mexico and defendant financed the sale. Subsequently, plaintiff was declared in default on the payments of the loan on the pickup truck. Two agents or employees of defendant came upon the Navajo Reservation and without the consent or permission of plaintiff removed the pickup truck. Defendant filed no replevin or other similar action in the Navajo Tribal Court prior to the repossession and no order of the Tribal Court was ever served on plaintiff before or after the taking of the pickup truck.

The complaint also set forth the following sections of the Navajo Tribal Code which had been approved by the Secretary of the Interior through his designees:

Title 7

' § 307. Repossession personal property

'The personal property of Navajo Indians shall not be taken from land subject to the jurisdiction of the Navajo Tribe under the procedures of repossession except in strict compliance with the following:

'(a) Written consent to remove the property from land subject to the jurisdiction of the Navajo Tribe shall be secured from the purchaser at the time repossession is sought. The written consent shall be retained by the creditor and exhibited to the Navajo Tribe upon proper demand.

'(b) Where the Navajo refuses to sign said written consent to permit removal of the property from land subject to the jurisdiction of the Navajo Tribe, the property shall be removed only by order of a Tribal Court of the Navajo Tribe in an appropriate legal proceeding.'

Title 7

' § 309. Civil liability

'Any person who violates section 307 of this title and any business whose employee violates such section is deemed to have breached the peace of the lands under the jurisdiction of the Navajo Tribe, and shall be civilly liable to the purchaser for any loss caused by the failure to comply with sections 307--309 of this title.

'If the personal property repossessed is consumer goods (to wit: goods used or bought for use primarily for personal, family or household purposes), the purchaser has the right to recover in any event an amount not less than the credit service charge plus ten percent (10%) of the principal amount of the debt or the time price differential plus ten percent (10%) of the cash price.

'Purchaser means the person who owes payment or other performance of an obligation secured by personal property, whether or not the purchaser owns or has rights in the personal property.'

The complaint further alleged a violation of section 307 and sought damage by the terms of section 309. The complaint only asked for relief on the basis that the enactments were entitled to full faith and credit. The conflict of laws question argued on appeal was not raised in the trial court. Accordingly, we do not discuss that question. We need go no further than McClanahan v. State Tax Commission of Arizona, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973) which held that a state may not impose a tax on resident Navajo Indians based on income arising out of and on the Navajo Reservation. The reasoning being that the imposition of the tax had interfered with matters which the relevant treaty and statutes leave to the exclusive province of the Federal government and the Indians. McClanahan espoused principles which are dispositive of the present question. The McClanahan court stated:

'The Indian sovereignty doctrine is relevant, then, not because is provides a definitive resolution of the issues in this suit, but because it provides a backdrop against which the applicable treaties and federal statutes must be read. It must always be remembered that the various Indian tribes were once independent and sovereign nations, and that their claim to sovereignty long predates that of our own Government. Indians today are American citizens. They have the right to vote, to use state courts, and they receive some state services. * * * But it is nonetheless still true, as it was in the last century, that '(t)he relation of the Indian tribes living within the borders of the United States (is) an anomalous one and of a complex character. * * * They were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations; not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided.' United States v. Kagama, 118 U.S. 375, at 381--382, 6 S.Ct. 1109, at 1112, 30 L.Ed. 228 (1886).' (Emphasis added, footnotes omitted)

Previously Congress expressed its willingness to have any state assume jurisdiction over reservation Indians provided the state could affirmatively accept such a responsibility. 67 Stat. 588, Ch. 505, § 7 (1953), repeal by Title IV, 82 Stat. 79, § 403(b) (1968). New Mexico did not accept this offer of jurisdiction.

Accordingly, as long as the Indian Tribes have preserved their tribal relations, as has the Navajo Tribe, they are "* * * regarded as having a semi-independent position * * * as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided." McClanahan v. State Tax Commission of Arizona, supra. The natural extension of this concept is that all who come upon the Navajo Reservation are subject to the tribal laws.

What is the status of Indian Tribal Law when pursued in a State Court of New Mexico?

Plaintiff contends that the law is entitled to full faith and credit. U.S. Const., art. 4, § 1. He contends that Congress expanded the full faith and credit clause by enacting 28 U.S.C.A. § 1738 which states in part:

'The Acts of the legislature of any State, Territory, or Possession of the United States, or copies thereof * * * shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.'

Plaintiff does not contend that the Navajo Nation is a State or possession within the meaning of the statute. He asserts it is a territory, citing Mackey v. Coxe, 59 U.S. (18 How.) 100, 15 L.Ed. 299 (1855). That case does not control; it interpreted an entirely different statute. We believe the emphasized wording in the above quote from McClanahan indicates that Indian Nations are indeed not territories.

Further, we think the language in District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), rehearing den., 410 U.S. 959, 93 S.Ct. 1411, 35 L.Ed.2d 694 (1973) is appropriate:

'* * * The territorial state has aptly been described as 'one of pupilage at best.' Nelson v. United States, 30 F. 112, 115 (Or.1887). From the moment of their creation, the Territories were destined for admission as States into the Union, and 'as a preliminary step toward that foreordained end--to tide over the period of ineligibility--Congress, from time to time, created territorial governments, the existence of which was necessarily limited to the period of pupilage.' O'Donoghue v. United States, 289 U.S. 516, 537, 53 S.Ct. 740, 745, 77 L.Ed. 1356 (1933); see McAllister v. United States, 141 U.S. 174, 188, 11 S.Ct. 949, 954, 35 L.Ed. 693 (1891). Thus, in light of the transitory nature of the territorial condition, Congress could reasonably treat the Territories as inchoate States, quite similar in many respects to the States themselves, to whose status they would inevitably ascend.'

New Mexico need not give full faith and credit to the Navajo Tribal Code.

Although not directly raised, mention of the law of comity was made at oral argument. That doctrine applies to relations between sovereign states. The Navajos, although 'semi-independent,' are not sovereign. McClanahan, supra.

Affirmed.

It is so ordered.

LOPEZ, J., specially concurs.

HERNANDEZ, J., dissents.

LOPEZ, Judge (specially concurring).

I concur in the result only. This appeal is based only upon the issue of dismissal for failure to state a claim upon which relief can be granted by the courts of this state. The issue on review is whether the plaintiff would be entitled to recover under any state of facts provable under the claim that is made. Tapia v. McKenzie, 83 N.M. 116, 489 P.2d 181 (Ct.App.1971). Section 309, Title 7, of the Navajo Tribal Code is similar to § 50-a--9--507(1), N.M.S.A.1953 (Repl.Vol. 8, pt. 1), a statute under which relief could be granted for wrongful repossession. Were I asked to decide this case under § 50A--9--507(1), supra, I might rule quite differently.

The purpose of the letter section is merely to afford an appropriate remedy to an individual for wrongful repossession under the U.C.C., Uniform Commercial Code (U.L.A.) § 9--507, Official Comment (1968). The purpose of the former section is to preserve peace in Navajo lands and jurisdiction of the Navajo tribal courts over internal matters. 7 N.T.C. § 309, History (1970).

Essentially, 7 N.T.C. § 309 is 'a punishment of an offense against the public, or...